Neutral Citation: 1996 ONICDRG 50

File No.: A-011825

ONTARIO INSURANCE COMMISSION

BETWEEN:

MURUVVET AKKAS

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Muruvvet Akkas, was injured in a motor vehicle accident on March 15, 1994. She applied for "other disability benefits" pursuant to section 19 of the Schedule¹ on the basis that she had suffered a partial or complete inability to carry on a normal life. The Insurer denied her claim, taking the position that her medical problems pre-dated the motor vehicle accident and that she had not suffered a partial or complete inability to carry on a normal life. The parties were unable to resolve their disputes through mediation and Mrs. Akkas applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Akkas entitled to other disability benefits, pursuant to section 19 of the Schedule, and if so, for what time period?

Mrs. Akkas also claims interest on any amounts owing and her expenses incurred at the hearing.

Result:

1. Mrs. Akkas is entitled to other disability benefits from March 22, 1994 to April 16, 1994.

Mrs. Akkas is entitled to interest on the outstanding amounts owing and her expenses of the hearing.

Hearing:

The hearing was held in Windsor, Ontario, on January 24 and 25, 1996, before me, M. Guy Jones, arbitrator.

Present at the Hearing:

Applicant:

Muruvvet Akkas

Insurer's Representative:

Brock Howie

Barrister and Solicitor

Insurer's Officer:

Dan Grey

Interpreter:

Mr. Sedat Ucerler

Witnesses:

Muruvvet Akkas

Dr. George Koppert

Ms. Lynn Mathers

Exhibits:

A total of six exhibits were filed at the hearing.

The proceedings were recorded by Mrs. Dorothy Desjardins, court reporter.

The Facts:

The Applicant, Muruvvet Akkas, was approximately 63 years of age when she was involved in a motor vehicle accident on March 15, 1994. She was taken to the Hotel Dieu Hospital in Windsor where she apparently complained of neck and right knee pain. She subsequently attended at the office of her family doctor, Dr. Leopold Strausz, where she complained of injuries to her neck, both shoulders, low back and both knees. In addition, she complained of constant headaches. Mrs. Akkas testified at the hearing that she has continued to suffer from all the above-noted injuries from the date of the accident to the present. While she views all the injuries as significant, Mrs. Akkas testified that as a result of the injuries to her knees, she has suffered a partial or complete inability to carry on a normal life.

Mrs. Akkas' activities:

In order to be entitled to "other disability benefits" pursuant to section 19 of the Schedule, the applicant must have suffered "a partial or complete inability to carry on a normal life."

Section 2 of the Schedule further states that:

For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(c) household activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

As numerous arbitrators have stated, the Schedule does not compensate for pain, nor does it compensate for a minor or limited inability to engage in certain activities. The inability must be "substantial."

A considerable period of time was spent at the hearing attempting to determine the pre-accident activities of the Applicant. Mrs. Akkas testified that prior to the accident, she carried on a fairly normal life as a 63-year old housewife. She claimed that she did the vast majority of the housework, cooked, took care of her grandchildren, travelled on public transit, did the shopping and the like. She lived, and continues to live, with her husband, her daughter, son-in-law, and three grandchildren, ages 18, 12 and 5 years.

At the hearing, Mrs. Akkas claimed to be a fairly active person prior to the accident. However, on April 20, 1994 she signed an "Initial Visit - Disability Questionnaire" which indicates that she did little or nothing in the way of household tasks or caregiver tasks before the motor vehicle accident. The information provided by Mrs. Akkas at that time indicates that she had a fairly sedentary lifestyle with no major physical activities.

Mrs. Akkas disputed the accuracy of the form at the hearing, and claimed that she was confused and did not understand it. Despite her testimony, I am satisfied that it relatively accurately reflects both her pre- and post-accident activities. Ms. Lynn Mathers, the then claims adjuster with the Insurer, testified that she went over the form in some detail with Mrs. Akkas and she used members of the Applicant's family as interpreters in order to ensure that Mrs. Akkas understood the form.

I am reinforced in my view that prior to the motor vehicle accident Mrs. Akkas had a fairly sedentary lifestyle, by the evidence of Dr. George Koppert, an orthopaedic surgeon who examined her on behalf of the Insurer. Dr. Koppert indicated that given the condition of Mrs. Akkas' knees prior to the accident, he would have been very surprised if she could have performed the household chores and activities that she claimed to do prior to the accident.

In light of the above, I find that prior to the accident, Mrs. Akkas' activities consisted of caring for herself, walking short distances, using public transit to visit friends, and performing light chores.

The extent of the injuries suffered by the Applicant:

At the hearing, Mrs. Akkas indicated that prior to the March 15, 1994 accident she had had some problems with her left knee, but they were not major. She was busy carrying on an active lifestyle. She denied any problems with her right knee, shoulders, neck and low back prior to the motor vehicle accident.

A review of the medical material filed during the hearing makes it clear that in addition to significant problems with her left knee, Mrs. Akkas also had problems with her right knee and shoulders prior to the accident. A report dated January 3, 1991 from Dr. George Bernstein, an orthopaedic surgeon, indicates that Mrs. Akkas was having left knee pain for a couple of years, and that he had recommended a cortisone injection, and the use of a cane and brace, some three years before the motor vehicle accident. In addition, Dr. Bernstein's report of February 23, 1994, indicates that when she saw him on February 18, 1994, or approximately one month before the accident, she complained of

...sore knees for the past year, worse with walking and worse on the stairs. This is associated with sleep dysfunction. She also notes tingling in her knees along with intermittent swelling...the patient has very symptomatic medial-sided osteoarthritis of both knees...I have suggested injection of the knees and the use of a walker to unload the knees and anti-inflammatory medication. If this does not help, she may require surgical treatment.

The clinical notes of the family doctor, Dr. Strausz, of March 1, 1994, made two weeks before the accident indicate "lots of pain in all points, mainly however in knees." He also described tremendous deformation of both knees, crepitus in both shoulders, and rigid lumbar lordosis.

In light of the above, I find that Mrs. Akkas was suffering from considerable knee and shoulder problems prior to the motor vehicle accident.

The question then becomes whether the injuries Mrs. Akkas suffered in the accident affected her ability to carry on a normal life within the meaning of sections 19 and 2 of the Schedule.

As mentioned above, Dr. George Koppert, an orthopaedic surgeon, examined Mrs. Akkas on December 20, 1995 on behalf of the Insurer. He concluded that the Applicant had suffered low back pain, bilateral leg pain, neck pain and headaches as a result of the accident. In addition she aggravated the condition in her knees. Dr. Koppert was of the opinion that the motor vehicle accident "did not significantly affect the knees" and that "the effect of the accident on the knees was minimal." I accept the evidence of Dr. Koppert in this regard, in preference to the evidence of Mrs. Akkas, in light of her faulty memory regarding the condition of her knees prior to the accident.

I note that Mrs. Akkas' main complaint with regard to her ability to carry on a normal life was the injury to her knees rather than to her neck, back, shoulders and headaches. A review of the clinical notes of Dr. Strausz and the complaints made to Dr. Koppert tends to confirm this.

The question then arises as to how long, if at all, the injuries suffered by Mrs. Akkas in the motor vehicle accident caused her to suffer a partial inability to carry on a normal life within the meaning of sections 19 and 2 of the Schedule. Mrs. Akkas testified that her injuries continue to disable her from carrying on a normal life. In light of her testimony regarding her pre-accident health, however, I am not satisfied that I can rely on her evidence as to her post-accident condition.

Dr. Koppert, while attributing very little of her condition to the motor vehicle accident, did not specify how long, if at all, she was disabled because of the accident.

Some assistance in answering this question is provided by Dr. Strausz in the Health Practitioner's Certificate that he filled out on April 16, 1994. In that report he indicated that Mrs. Akkas was capable of returning to her normal activities, although she would require help getting in and out of the bathtub.²

In light of the above, I conclude that Mrs. Akkas was suffering from a partial inability to carry on a normal life as a result of the motor vehicle accident until April 16, 1994. Accordingly she is entitled to "other disability benefits" from March 22, 1994 to April 16, 1994.

Subsequent Evidence:

The hearing in this matter was completed on January 25, 1996. On February 26, 1996 the Ontario Insurance Commission received a letter from Mr. and Mrs. Akkas enclosing a report from Dr. Strausz regarding the medical condition of Mrs. Akkas. After some consideration, I have decided not to admit the report as evidence. This matter was scheduled for a hearing on two previous occasions prior to the January 1996 hearing, and was adjourned on both occasions at the request of the Applicants. In addition I am unaware of any reason why the report could not have been obtained in time for the hearing in January 1996.

Expenses:

Pursuant to section 282(11) of the Insurance Act, I award Mrs. Akkas her expenses of the arbitration.

Order:

1. Mrs. Akkas is entitled to "other disability benefits" pursuant to section 19 of the Schedule from March 22, 1994 until April 16, 1994, together with interest thereon.

2. Mrs. Akkas is entitled to her expenses of the arbitration.

April 15, 1996

Guy Jones Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after January 1, 1994, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2Exhibit 2, tab 1, page 2